United States v. Joe Benally

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-10452

Plaintiff-Appellee,

D.C. No.

v. 3:13-cr-08095-GMS-1

JOE ARVISO BENALLY, ORDER AND

Defendant-Appellant. AMENDED OPINION

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, District Judge, Presiding

Argued and Submitted April 11, 2016

San Francisco, California

Filed August 1, 2016

Amended November 7, 2016

Before: Dorothy W. Nelson, John T. Noonan,

and Diarmuid F. O’Scannlain, Circuit Judges.

Order;

Opinion by Judge Noonan

2 UNITED STATES V. BENALLY

SUMMARY*

Criminal Law

The panel filed an order amending an opinion filed

August 1, 2016, and denied a petition for rehearing, in a case

in which the panel reversed a conviction for using a firearm

in connection with a “crime of violence” under 18 U.S.C.

§ 924(c).

In the August 1, 2016, opinion, the panel held that

involuntary manslaughter under 18 U.S.C. § 1112, which

requires a mental state of only gross negligence, prohibits

conduct that cannot be considered a “crime of violence”

under 18 U.S.C. § 924(c)(3), and therefore cannot qualify

under the categorical approach.

In the order amending the opinion, the panel noted that

Voisine v. United States, 136 S. Ct. 2272 (2016), suggested

that reckless conduct can constitute a crime of violence. The

panel wrote that it need not resolve any tension regarding the

inclusion of reckless conduct because the government

conceded that § 1112 – which requires a mental state of only

gross negligence – prohibits conduct that cannot be a “crime

of violence,” even after Voisine.

The panel wrote that United States v. Springfield, 829

F.2d 860 (9th Cir. 1987), which held that involuntary

manslaughter under § 1112 is a “crime of violence” for

purposes of § 924(c)(3)), is no longer good law because it is

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. BENALLY 3

clearly irreconcilable with the reasoning and results of Leocal

v. Ashcroft, 543 U.S. 1 (2004) (interpreting 18 U.S.C. § 16(a)

and (b)), and Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th

Cir. 2006) (en banc) (holding that neither recklessness nor

gross negligence is a sufficient mens rea to establish that a

conviction is for a crime of violence under § 16).

COUNSEL

Daniel L. Kaplan (argued), Assistant Federal Public

Defender; Jon M. Sands, Federal Public Defender; Office of

the Federal Public Defender, Phoenix, Arizona; for

Defendant-Appellant.

Karla Delord (argued), Assistant United States Attorney;

Krissa M. Lanham, Deputy Appellate Chief; John S.

Leonardo, United States Attorney; United States Attorney’s

Office, Phoenix, Arizona; for Plaintiff-Appellee.

ORDER

The opinion filed on August 1, 2016 is amended as

follows:

Replace the portion of the opinion that runs from the

second paragraph of page 9 of the slip opinion (beginning

<Leocal explicitly leaves open the question whether . . . >)

through the end of the penultimate paragraph on page 10

(which ends < . . . and is no longer good law.>) with:

<After Leocal, we held that “neither recklessness nor

gross negligence is a sufficient mens rea to establish that a

4 UNITED STATES V. BENALLY

conviction is for a crime of violence under § 16.” Fernandez-

Ruiz, 466 F.3d at 1130. This June, the Supreme Court

suggested the opposite, and held that for purposes of a

similar statute—18 U.S.C. § 921(a)(33)(A)—reckless conduct

indeed can constitute a crime of violence. See Voisine v.

United States, 136 S. Ct. 2272, 2279–80, 2282 (2016). But

we need not resolve any tension regarding the inclusion of

reckless conduct in this case. The government concedes that

§ 1112, which requires a mental state of only gross

negligence, prohibits conduct that cannot be a “crime of

violence,” even after Voisine. Springfield’s opposing rule is

clearly irreconcilable with the reasoning and the results of

Leocal and Fernandez-Ruiz and is no longer good law.>

With this amendment, the panel votes to deny the petition

for rehearing.

No further petitions for rehearing will be entertained.

OPINION

NOONAN, Circuit Judge:

Joe Arviso Benally appeals a jury conviction for

involuntary manslaughter under 18 U.S.C. §§ 1112 and 1153

and for using a firearm in connection with a “crime of

violence” under 18 U.S.C. § 924(c). In a separate

unpublished memorandum disposition, we address Benally’s

challenge to the trial proceedings and sentence. In this

opinion, we address whether involuntary manslaughter can be

considered a “crime of violence” under § 924(c). We hold

UNITED STATES V. BENALLY 5

that involuntary manslaughter is not a “crime of violence”

and reverse the § 924(c) count of conviction.

FACTS AND PROCEEDINGS

On January 17, 2013, Carlos Harvey was shot in the chest

with Benally’s rifle, killing Harvey. Both Benally and

Harvey lived on the same multi-house compound in a rural

part of the Navajo Nation Indian Reservation in Oak Springs,

Arizona. On April 30, 2013, a federal grand jury returned an

indictment against Benally for the second-degree murder of

Carlos Harvey and for using a firearm in connection with a

“crime of violence.”

At trial, the government presented evidence that, after a

day of drinking, Benally shot Harvey intentionally after an

argument. Other government evidence indicated that the

shooting was accidental and part of a drunken game. The

jury did not convict Benally of second-degree murder, but of

the lesser-included offense of involuntary manslaughter. The

jury, instructed to find involuntary manslaughter to be a

“crime of violence,” also convicted Benally of using a firearm

in connection with a “crime of violence” under § 924(c).

Benally appeals his conviction on both counts.

JURISDICTION

An “Indian” who commits murder or manslaughter in

“Indian country” is subject to applicable federal criminal

laws. 18 U.S.C. § 1153(a). The location of the shooting here,

the Navajo Nation Indian Reservation, is “Indian country” for

the purposes of § 1153. 18 U.S.C. § 1151 (defining “Indian

country” to include “all land within the limits of any Indian

reservation under the jurisdiction of the United States

6 UNITED STATES V. BENALLY

Government”). We have appellate jurisdiction under

28 U.S.C. § 1291.

DISCUSSION

Benally’s conviction under § 924(c) for use of a firearm

requires a predicate “crime of violence.” To determine

whether Benally’s conviction for involuntary manslaughter is

a “crime of violence” we apply the “categorical approach”

laid out in Taylor v. United States, 495 U.S. 575 (1990).

United States v. Amparo, 68 F.3d 1222, 1224–26 (9th Cir.

1995); see also United States v. Piccolo, 441 F.3d 1084,

1086–87 (9th Cir. 2006) (as amended) (applying the

categorical approach to the definition of a “crime of violence”

found in U.S.S.G. § 4B1.2). Under this approach, we do not

look to the particular facts underlying the conviction, but

“compare the elements of the statute forming the basis of the

defendant’s conviction with the elements of” a “crime of

violence.” See Descamps v. United States, 133 S. Ct. 2276,

2281 (2013) (describing this approach under 18 U.S.C.

§ 924(e)). The defendant’s crime cannot categorically be a

“crime of violence” if the statute of conviction punishes any

conduct not encompassed by the statutory definition of a

“crime of violence.” See id.; Piccolo, 441 F.3d at 1086–87;

United States v. Castillo-Marin, 684 F.3d 914, 919 (9th Cir.

2012) (“If the statute of conviction is overbroad . . . it does

not categorically constitute a crime of violence.”).

If the statute of conviction does not qualify as a

categorical “crime of violence,” we sometimes then apply the

modified categorical approach, which allows us to look to a

narrow set of documents that are part of the record of

conviction. See Descamps, 133 S. Ct. at 2281; Piccolo,

441 F.3d at 1090. Here, the government did not argue that

UNITED STATES V. BENALLY 7

the modified categorical approach applies and we need not

address it. Latu v. Mukasey, 547 F.3d 1070, 1076 (9th Cir.

2008) (“[W]here, as here, the government has not asked us to

apply the modified categorical approach, we ‘consider only

whether the categorical approach is satisfied.’” (quoting

Mandujano-Real v. Mukasey, 526 F.3d 585, 589 (9th Cir.

2008)).

Accordingly, we compare the elements of § 1112, the

involuntary manslaughter statute, to the definition of a “crime

of violence” found in § 924(c)(3). We review de novo

whether a criminal conviction is a “crime of violence” and

whether a jury instruction misstated the elements of an

offense. Covarrubias Teposte v. Holder, 632 F.3d 1049,

1052 (9th Cir. 2011) (as amended); Amparo, 68 F.3d at 1224.

A “crime of violence” is an offense that “(A) has as an

element the use, attempted use, or threatened use of physical

force against the person or property of another, or (B) that by

its nature, involves a substantial risk that physical force

against the person or property of another may be used in the

course of committing the offense.” 18 U.S.C. § 924(c)(3).

Involuntary manslaughter is the “unlawful killing of a

human being without malice . . . [i]n the commission of an

unlawful act not amounting to a felony, or in the commission

in an unlawful manner, or without due caution and

circumspection, of a lawful act which might produce death.”

18 U.S.C. § 1112(a). A conviction for involuntary

manslaughter requires, at a minimum, a mental state of

“‘gross negligence,’ defined as a ‘wanton or reckless

disregard for human life.’” United States v. Pineda-Doval,

614 F.3d 1019, 1038–39 (9th Cir. 2010) (quoting United

8 UNITED STATES V. BENALLY

States v. Crowe, 563 F.3d 969, 973 (9th Cir. 2009) (citation

omitted)).

In United States v. Springfield, 829 F.2d 860 (9th Cir.

1987), we held that involuntary manslaughter under § 1112

is a “crime of violence” for the purposes of § 924(c)(3). Id.

at 862–63. Although involuntary manslaughter does not

contain a use-of-physical-force element under § 924(c)(3)(A),

we held that it inherently involves a substantial risk that such

force will be used under § 924(c)(3)(B) because death by

involuntary manslaughter is “highly likely to be the result of

violence.” Id. at 863. Therefore, we held that involuntary

manslaughter “comes within the intent, if not the precise

wording, of section 924(c)(3).” Id. Additionally, we noted

that involuntary manslaughter’s requisite mental state of

“gross negligence” does not exclude it from being a “crime of

violence” because “Congress did not intend to limit ‘crimes

of violence’ to crimes of specific intent.” Id. at 863 n.1

(citing S. Rep. No. 307, 97th Cong., 1st Sess., 890–91

(1982)). But see Park v. INS, 252 F.3d 1018, 1023 (9th Cir.

2001), overruled on other grounds by Fernandez-Ruiz v.

Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc)

(noting that the legislative history quoted did not correspond

to § 924(c), but a separate provision that never became law).

Intervening Supreme Court and en banc Ninth Circuit

decisions, namely, Leocal v. Ashcroft, 543 U.S. 1 (2004), and

Fernandez-Ruiz v. Gonzales, 466 F.3d at 1124–32, bring

Springfield’s result into question. A three-judge panel’s

holding is deemed “effectively overruled” if intervening

higher authority has “undercut the theory or reasoning

underlying the prior circuit precedent in such a way that the

cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d

889, 893, 900 (9th Cir. 2003) (en banc).

UNITED STATES V. BENALLY 9

Leocal and Fernandez-Ruiz discuss the mental state

necessary to commit a “crime of violence.” These cases do

not specifically address § 924(c)(3), but instead interpret the

“crime of violence” definition found in a different statutory

provision, 18 U.S.C. § 16. Regardless, because the wording

of the two statutes is virtually identical,1 we interpret their

plain language in the same manner. Cf. Park, 252 F.3d at

1022 (applying Springfield’s interpretation of § 924(c)(3) to

a case involving § 16).

In Leocal, the Supreme Court parsed the phrase “use of

force against the person or property of another” found in

§ 16(a) and (b). Leocal, 543 U.S. at 8–13. The Court, giving

the language its “‘ordinary or natural’ meaning,” determined

that it “most naturally suggests a higher degree of intent than

negligent or merely accidental conduct.” Id. at 9 (citations

omitted). While theoretically one can use force accidentally,

“it is much less natural to say that a person actively [uses]

physical force against another person by accident.” Id.

The Court acknowledged that § 16(b) “sweeps more

broadly than § 16(a)” by expanding the definition of “crime

of violence” to include an offense carrying a “substantial risk

that physical force against the person or property of another

may be used in the course of committing the offense.” Id. at

1

Under § 16, the term “crime of violence” means “(a) an offense that

has an element the use, attempted use, or threatened use of physical force

against the person or property of another, or (b) any other offense that is

a felony and that, by its nature, involves a substantial risk that physical

force against the person or property of another may be used in the course

of committing the offense.” 18 U.S.C. § 16 (emphasis added). The only

substantive change is the addition of the felony requirement in subsection

(b), underlined above; it does not affect the operative language used to

interpret the statute’s requisite mental state.

10 UNITED STATES V. BENALLY

10 (citing 18 U.S.C. § 16(b)). But because § 16(b) involves

the same use-of-force-against-another formulation, the

predicate crime must carry a risk of behavior involving more

volition than “merely accidental or negligent conduct.” Id. at

10–11 (“The reckless disregard in § 16 relates not to the

general conduct or to the possibility that harm will result

from a person’s conduct, but to the risk that the use of

physical force against another might be required in

committing a crime.”).

After Leocal, we held that “neither recklessness nor gross

negligence is a sufficient mens rea to establish that a

conviction is for a crime of violence under § 16.” Fernandez-

Ruiz, 466 F.3d at 1130. This June, the Supreme Court

suggested the opposite, and held that for purposes of a similar

statute—18 U.S.C. § 921(a)(33)(A)—reckless conduct indeed

can constitute a crime of violence. See Voisine v. United

States, 136 S. Ct. 2272, 2279–80, 2282 (2016). But we need

not resolve any tension regarding the inclusion of reckless

conduct in this case. The government concedes that § 1112,

which requires a mental state of only gross negligence,

prohibits conduct that cannot be a “crime of violence,” even

after Voisine. Springfield’s opposing rule is clearly

irreconcilable with the reasoning and the results of Leocal

and Fernandez-Ruiz and is no longer good law.

Benally’s § 924(c) count of conviction for using a firearm

in connection with a “crime of violence” is

REVERSED.